USCA11 Case: 21-12112 Date Filed: 05/12/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12112
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY JOSEPH HIGDON, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:03-cr-00043-WKW-1
____________________
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2 Opinion of the Court 21-12112
Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Jerry Joseph Higdon, Jr., a federal prisoner proceeding pro
se, appeals the district court’s partial denial of his motion to reduce
his sentence, brought under
18 U.S.C. § 3582(c)(2), its denial of his
motion to “exonerate” him based on the court’s lack of jurisdiction,
and its denial of his motion to compel the government to respond
to his motion to “exonerate.” On appeal, he argues that: (1) the
district court erred in denying, in part, his motion to reduce his sen-
tence because it should have converted his individual sentences to
run concurrently, rather than consecutively, and it should have re-
duced his sentence on Count 10; and (2) the district court erred in
denying his motion “to exonerate” and his motion to compel be-
cause the district court lacked jurisdiction to convict him. After
thorough review, we affirm.
I.
The relevant background is this. In 2003, Higdon was con-
victed of three counts of distributing methamphetamine, in viola-
tion of
21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2 (Counts 2–4) and one
count of committing a drive-by shooting in furtherance of a major
drug trafficking offense, in violation of
18 U.S.C. § 36 (Count 10).
The presentence investigation report (“PSI”) found that his guide-
line range was life imprisonment, subject to statutory maximum
terms of 40 years (480 months) as to each of Counts 2 through 4;
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21-12112 Opinion of the Court 3
and 25 years (300 months) as to Count 10. The district court sen-
tenced Higdon to a total of 480 months’ imprisonment as to each
of Counts 2 through 4, each to run consecutively; and 300 months
as to Count 10, to run consecutively. His total sentence was 1,740
months or 145 years’ imprisonment. He challenged this sentence,
without success, on direct appeal and in a subsequent motion to
vacate his total sentence under
28 U.S.C. § 2255, which the district
court denied on the merits.
Later, Higdon moved the district court to reduce his total
sentence, to “exonerate” him and release him from imprisonment,
and to compel the government to respond to his motion “to exon-
erate.” The district court granted his motion for a sentence reduc-
tion, in part, as to Counts 2–4, but denied it as to Count 10, reduc-
ing his total sentence from 145 years’ imprisonment to 115 years’
imprisonment. The court denied his remaining motions. Higdon
now appeals.
II.
We review de novo a district court’s legal conclusions about
the Sentencing Guidelines and the scope of its authority under
18
U.S.C. § 3582(c)(2). United States v. Davis,
587 F.3d 1300, 1303
(11th Cir. 2009). However, we review arguments brought for the
first time on appeal by criminal defendants for plain error only. See
United States v. Anderson,
1 F.4th 1244, 1268 (11th Cir. 2021); see
also United States v. Fair,
326 F.3d 1317, 1318 (11th Cir. 2003) (hold-
ing that a § 3582(c)(2) motion is criminal in nature). To establish
plain error, the defendant must show (1) an error, (2) that is plain,
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4 Opinion of the Court 21-12112
and (3) that affected his substantial rights. United States v. Turner,
474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant satisfies these
conditions, we may exercise our discretion to recognize the error
only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings.
Id. For an asserted error to be plain, it must
be clear from the plain meaning of a statute or constitutional pro-
vision, or from a holding of the Supreme Court or this Court.
United States v. Morales,
987 F.3d 966, 976 (11th Cir.), cert. denied,
142 S. Ct. 500 (2021). We construe pro se pleadings liberally, but
all litigants must comply with applicable procedural rules. United
States v. Padgett,
917 F.3d 1312, 1316–17 (11th Cir. 2019).
When it comes to jurisdictional issues, we review the district
court’s legal conclusions de novo and, subject to certain exceptions
not relevant here, its findings of fact for clear error. Calderon v.
Baker,
771 F.3d 807, 810 (11th Cir. 2014). More generally, a district
court has the inherent power to manage its docket, and we will
review the exercise of that power for abuse of discretion. State
Exch. Bank v. Hartline,
693 F.2d 1350, 1352 (11th Cir. 1982).
III.
First, we are unpersuaded by Higdon’s claim that the district
court erred in denying, in part, his motion for a sentence reduction.
Ordinarily, a district court may not modify a defendant’s term of
imprisonment once it has been imposed.
18 U.S.C. § 3582(c).
However, a district court may reduce a defendant’s sentence if the
term of imprisonment was “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
Id.
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21-12112 Opinion of the Court 5
§ 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). The defendant bears
the burden of showing that he is entitled to this relief. See United
States v. Hamilton,
715 F.3d 328, 337 (11th Cir. 2013).
The grounds upon which a district court may reduce a de-
fendant’s sentence pursuant to § 3582(c)(2) are narrow. United
States v. Berry,
701 F.3d 374, 376 (11th Cir. 2012). For a defendant
to be eligible for a reduction, the Sentencing Commission must
have amended the guideline at issue, that amendment must have
lowered the defendant’s sentencing range, and the amendment
must also be listed in U.S.S.G. § 1B1.10(d). See
18 U.S.C.
§ 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & comment. (n.1(A)). The ap-
plicable guideline range is a defendant’s guideline range before any
departures or variances. U.S.S.G. § 1B.10 comment. (n.1(A)).
When determining the extent to which a reduction in a defendant’s
term of imprisonment is warranted under § 3582(c)(2), a court
“shall determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) . . . had been
in effect at the time the defendant was sentenced,” but “shall leave
all other guideline application decisions unaffected.” Id.
§ 1B1.10(b)(1). Accordingly, “[w]here a retroactively applicable
guideline amendment reduces a defendant’s base offense level, but
does not alter the sentencing range upon which his or her sentence
was based, § 3582(c)(2) does not authorize a reduction in sentence.”
Hamilton, 715 F.3d at 337 (quotations omitted).
Amendment 782 is one of the listed amendments that ap-
plies retroactively, so it may serve as the basis for a § 3582(c)(2)
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6 Opinion of the Court 21-12112
motion to reduce sentence. Id. § 1B1.10(a)(1), (d). Amendment
782 revises the drug quantity tables in U.S.S.G. § 2D1.1, resulting
in a two-level reduction to the base offense level applicable to most
drug offenses. Id. App. C, Amend. 782 (2014). As relevant here,
following Amendment 782, § 2D1.1 now provides a base offense
level of 34 for offenses involving possession of between 10,000 and
30,000 kilograms of marijuana. U.S.S.G. § 2D1.1(c)(2). Accord-
ingly, if Higdon were sentenced today, application of the same base
offense level and enhancements he originally received would result
in a total offense level of 42. See id. §§ 2D1.1(b)(2) (two levels);
3B1.1(a) (four levels); 3C1.1 (two levels). A defendant with a total
offense level of 42 and criminal history category of I has a guideline
range of 360 months to life imprisonment. See id., Sentencing Ta-
ble. The statutory maximum term of imprisonment under
18
U.S.C. § 36(b) is 25 years (300 months), and the maximum is 40
years (480 months) under
21 U.S.C. § 841(a)(1).
18 U.S.C. § 36(b);
21 U.S.C. § 841(b)(1)(B).
U.S.S.G. § 5G1.2(d) provides: “[i]f the sentence imposed on
the count carrying the highest statutory maximum is less than the
total punishment, then the sentence imposed on one or more of
the other counts shall run consecutively, but only to the extent nec-
essary to produce a combined sentence equal to the total punish-
ment.” U.S.S.G. § 5G1.2(d). A defendant’s “total punishment” is
calculated as follows: “[t]he combined length of the sentences (‘to-
tal punishment’) is determined by the court after determining the
adjusted combined offense level and the Criminal History
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21-12112 Opinion of the Court 7
Category and determining the defendant’s guideline range on the
Sentencing Table.” Id. § 5G1.2(d), comment. (n.1). We have inter-
preted § 5G1.2(d) to “require[] that sentences run consecutively to
the extent necessary to reach the defendant’s guidelines range.”
United States v. Johnson,
451 F.3d 1239, 1243 (11th Cir. 2006); see
also United States v. Sarras,
575 F.3d 1191, 1208–09 (11th Cir. 2009).
The Supreme Court has indicated that a district court can-
not, under § 3582(c)(2), modify a defendant’s existing consecutive
sentences to run concurrently. See Dillon v. United States,
560 U.S.
817, 831 (2010). There, the Supreme Court rejected the appellant’s
argument that the district court, in a § 3582(c)(2) proceeding,
should have corrected the sentencing court’s treatment of the
Guidelines as mandatory, as well as its finding concerning his crim-
inal history category. Id. It noted, in that respect, that Ҥ 3582(c)(2)
does not authorize a resentencing . . . [because the] relevant policy
statement instructs that a court . . . ‘shall substitute’ the amended
Guidelines range for the initial range ‘and shall leave all other
guideline application decisions unaffected.’” Id. We have no bind-
ing precedent addressing whether a district court can, under §
3582(c)(2), modify a defendant’s existing consecutive sentences to
run concurrently.
Here, in his § 3582(c)(2) proceeding, Higdon did not raise his
first claim on appeal -- that when it resentenced him, the district
court should have reclassified his individual sentences for each
count of conviction to run concurrent with, as opposed to consec-
utive to one another. Therefore, we review this claim on appeal
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8 Opinion of the Court 21-12112
for plain error only. See Anderson, 1 F.4th at 1268. Under that
standard of review, we can find no plain error because we have no
binding precedent expressly determining whether a district court
may modify a defendant’s existing consecutive sentences to run
concurrently. See Morales, 987 F.3d at 976 (holding that an error
constitutes plain error where the error is clear from the plain mean-
ing of a statute or constitutional provision, or from a holding of the
Supreme Court or this Court). If anything, the Supreme Court has
suggested that the district court lacked the discretion to convert
Higdon’s existing consecutive sentences to run concurrently, when
it said that, in a § 3582(c)(2) proceeding, a district court must leave
unaffected “all . . . guideline application decisions” other than an
amended guideline range. See Dillon,
560 U.S. at 831.
Higdon also argues that the district court erred when it de-
clined to reduce his sentence on Count 10, the count that charged
him with committing a drive-by shooting in furtherance of a major
drug trafficking offense, in violation of
18 U.S.C. § 36. Again, we
disagree. As the record reflects, Higdon’s amended total offense
level of 42, when combined with a criminal history category of I,
produced a guideline range of 360 months to life, which was still in
excess of the 300-month statutory maximum that he was sentenced
to under
18 U.S.C. § 36. This means that the amended guidelines
did not change Higdon’s guideline range as to Count 10, and the
court lacked the authority to order a sentence reduction in that re-
spect. See Hamilton, 715 F.3d at 337. Thus, the court did not err
in denying Higdon’s motion for a sentence reduction.
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21-12112 Opinion of the Court 9
Similarly, we find no merit to Higdon’s challenges to the dis-
trict court’s denial of his motion “to exonerate” or its denial of his
motion to compel the government to respond to the motion “to
exonerate.” In construing pro se pleadings, federal courts must
“look behind the label of a motion filed by a pro se inmate and de-
termine whether the motion is, in effect, cognizable under a differ-
ent remedial statutory framework.” United States v. Jordan,
915
F.2d 622, 624–25 (11th Cir. 1990). However, all litigants must com-
ply with the applicable procedural rules, and we will not “serve as
de facto counsel for a party or . . . rewrite an otherwise deficient
pleading in order to sustain an action.” Padgett, 917 F.3d at 1316–
17. Further, while
28 U.S.C. § 2255 serves as the primary method
of collateral attack on the validity of a federal sentence, Jordan,
915
F.2d at 629, if a petitioner does not receive authorization to file a
second or successive petition, the district court lacks jurisdiction to
consider it. See United States v. Burton,
549 U.S. 147, 153 (2007).
If the district court lacks subject matter jurisdiction, it has no
power to render a judgment on the merits, and it must dismiss the
claim without prejudice. Stalley v. Orlando Reg’l Healthcare Sys.,
Inc.,
524 F.3d 1229, 1234–35 (11th Cir. 2008). We may sua sponte
modify a district court’s judgment that is lawfully before us.
28
U.S.C. § 2106.
For starters, because Higdon’s post-conviction “motion to
exonerate” sought to invalidate his underlying convictions, it
should have been construed as a § 2255 motion. See Jordan,
915
F.2d at 624–25, 629. Yet as a § 2255 motion, it was a successive one
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10 Opinion of the Court 21-12112
the district court lacked jurisdiction to consider, because the district
court had already denied Higdon’s earlier § 2255 motion on the
merits, and he did not receive our authorization to proceed with
any new § 2255 motion. See Burton,
549 U.S. at 153. Thus, the
district court lacked jurisdiction to consider his motion, and we af-
firm, construing the district court’s order denying his motion “to
exonerate” as a dismissal without prejudice for lack of jurisdiction.
See
28 U.S.C. § 2106.
Finally, the district court did not abuse its discretion in deny-
ing Higdon’s motion to compel the government to respond to his
earlier motion “to exonerate,” because the court was able to deter-
mine, without awaiting a response, that his legal arguments were
meritless. Accordingly, we affirm.
AFFIRMED.
